I'm writing my Civil Procedure exam today. Or at least I'm supposed to be writing it. It was due on Friday. Instead, I'm reading the eight Ninth Circuit opinions that were published today. Those couple hundred pages have somewhat gotten in the way of my "academic" productivity today. Not to mention the California Court of Appeal opinions, which continue to roll in.
Fortunately, my various functions somewhat overlap today. Amongst the various Ninth Circuit opinions was this one. Which raises a classic Erie question: Whether a federal court is required to follow Arizona Rule 68 and allow recovery of expert witness fees and double costs when a defendant makes a federal Rule 68 offer, it is rejected, and plaintiff's ultimate recovery is less than the offer.
It's such a classic Erie question that I might be willing to make this fact pattern part of my exam, but the fact that there's an actual opinion out there (and that the essay portion open-book) probably means I won't do so. Probably. If I can't get my exam written pretty soon, taking a ready-made hypothetical and retyping it as my exam might start looking pretty good. The Dark Side. It's seductive.
The First Circuit held, in an analogous context, that the federal court was required to follow the state rule. The Ninth Circuit concludes otherwise, holding that Federal Rule of Civil Procedure 68 is sufficiently broad to cover the matter and hence a federal court is not required (or allowed) to follow the state rule.
Were I to give this question as my exam, the Ninth Circuit's opinion would receive an A. Maybe even an A+ -- though I have to somewhat adjust my grading scale, as the panel had several months to write the opinion, whereas the most my students would have is three hours or so. To get an A++, the Ninth Circuit might have wanted to write a little bit more about potential conflicts between even plaintiff offers and Rule 68; there is, in my view, a decent argument that federal courts cannot impose post-offer penalties even when plaintiffs make an offer, on the theory that Rule 68 deliberately omits plaintiff offers from coverage and hence involves a policy decision that sufficiently covers the area. But I admit that's somewhat of a tangent, so I wouldn't give that topic many points. I'd just be a bit more skeptical about that than the Ninth Circuit's opinion is.
The First Circuit's opinion, by contrast, would receive a D. It doesn't discuss the Erie question virtually at all. It's takes a ton of things virtually for granted. It's simply not good at all. So, seriously, it'd receive a D if one of my students wrote it as an exam answer.
Which is somewhat ironic. Since the author of that First Circuit opinion was a former professor of mine -- to whom I once turned in a exam. A guy you may have heard of. Whose last name is Breyer.
Oh, Stephen. You know you can do better work than this. The Ninth Circuit crushed you. And we grade on a curve.
